The sale of products and services ("Products") by NexGen Digital Inc. and its divisions, subsidiaries, and affiliates ("NexGen Digital") to a customer ("Customer") are subject to these terms and conditions ("Agreement") regardless of other terms or conditions in any purchase order, document, or other communication of Customer ("Order") or NexGen Digital's failure to object to such other terms. This Agreement may only be modified in writing signed by authorized representatives of both NexGen Digital and Customer.
1. ORDERS. Unless otherwise stated on the quote, NexGen Digital quotes are invitations to tender and are subject to change at any time without notice. All Orders are subject to acceptance by NexGen Digital Inc. Contracts between Customer and NexGen Digital are formed upon NexGen Digital's written acceptance, Electronic Data Interchange ("EDI") acknowledgment or execution of Customer's Order and are subject to this Agreement. All Orders for Products that NexGen Digital identifies as nonstandard or "NCNR" are noncancelable and nonreturnable. NexGen Digital may identify Products as nonstandard or "NCNR" by various means including quotes, product lists, attachments or exhibits. Customers may not change, cancel or reschedule Orders for standard Products without NexGen Digital's consent. NexGen Digital reserves the right to allocate the sale of Products among its Customers.
2. PRICES. Unless otherwise stated on NexGen Digital's proposal, quote or invoice: (a) prices are for Products only and do not include taxes, freight, duties, tariffs or any other charges or fees for additional services (collectively, "Additional Fees"); and (b) Customer shall pay any Additional Fees. Prices may be changed by NexGen Digital for any reason prior to delivery, including manufacturer price increase, change in exchange rate or a quoting error.
3. TERMS OF PAYMENT. Payment is due as stated on NexGen Digital's invoice without offset or any deduction for withholding taxes or otherwise. On any past due invoice, NexGen Digital may charge interest from the payment due date the maximum amount allowed by applicable law, plus reasonable attorneys' fees and collection costs. At any time, NexGen Digital may change the terms of Customer's credit. NexGen Digital may apply payments to any of Customer's accounts. If Customer defaults on any payment, NexGen Digital may reschedule or cancel any outstanding delivery or Order and declare all outstanding invoices due and payable immediately. Unless otherwise provided by applicable law, Customer credits provided by NexGen Digital will expire if unused within 12 months.
4. DELIVERY. Unless otherwise stated by NexGen Digital in writing, all NexGen Digital deliveries are EXW to the customer's delivery location. NexGen Digital's delivery dates are estimates only and subject to NexGen Digital's timely receipt of supplies. NexGen Digital is not liable for delays in delivery, for partial or early deliveries and Customer shall accept delivery. Customer may not cancel any other Orders based on delayed delivery of any part of an Order.
5. SOFTWARE. Software is the machine readable (object code) version of computer programs ("Software"). Customer's use of Software and any related documentation shall be governed by the Software's applicable license agreements. Software embedded in or bundled with hardware must be used solely with the device for which it was intended and may not be transferred separately.
6. WARRANTY. Customer acknowledges that NexGen Digital is not the manufacturer of the Products. To the extent legally and contractually permitted, NexGen Digital shall pass through to Customer any transferable Product warranties, indemnities, and remedies provided to NexGen Digital by the manufacturer, including those for intellectual property infringement. If required by law, NexGen Digital warrants that at the time of delivery, Products will conform to the specifications stated by the manufacturer in its published data sheet for the Products. All warranty claims shall be timebarred 12 months from the time of delivery of the nonconforming Products. If NexGen Digital performs valueadded work such as integration work, tapeandreel, or programming, NexGen Digital warrants such valueadd work will conform to Customer's written specifications accepted by NexGen Digital for 90 days after NexGen Digital delivery. Customer will be deemed the manufacturer of such valueadded Products. NEXGEN DIGITAL MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED, SUCH AS WARRANTY OF MERCHANTABILITY, FITNESS FOR PURPOSE OR NONINFRINGEMENT. Customer's sole remedies for breach of NexGen Digital's warranty are, at NexGen Digital's choice: (i) repair of the Products; (ii) replacement of the Products; or (iii) refund of Customer's purchase price for the Products. NexGen Digital makes no representation or warranty with respect to Software and will have no liability in connection therewith. Unless it is specifically stated in the Software's applicable license agreement, SOFTWARE IS PROVIDED "AS IS" WITH NO ADDITIONAL WARRANTY.
7. PRODUCT RETURN. Customers may return Products to NexGen Digital only with a return material authorization ("RMA") number issued by NexGen Digital. (A) Returns for Visual Defect: Customer must notify NexGen Digital in writing of any damage to the outer packaging or the Products, shortage, or other discrepancy ("Visual Defect") within three business days after receipt of the shipment; otherwise, Customer is deemed to have accepted the Products. (B) Returns for Product Warranty: Customer must notify NexGen Digital in writing stating the specific Product defect within the warranty period. NexGen Digital will only issue an RMA if the defect (either for Visual Defect or for Product Warranty) is created solely by NexGen Digital or the original manufacturer, and only if the Customer meets the notice requirement. NexGen Digital will not grant RMAs for damage, shortage, or other discrepancy created by Customer, the carrier or freight provider, or any other third party. Upon receiving the RMA, the Customer must return the Products to NexGen Digital in compliance with NexGen Digital's instructions in the RMA. NexGen Digital may assess all Products returned by Customers via RMA. If NexGen Digital determines such Products are not eligible for return, NexGen Digital will send such Products back to Customer on freight collect basis or hold such Products for Customer's collection and on account at Customer's expense.
8. LIMITATION OF LIABILITY. NexGen Digital's liability to Customer is limited to Customer's direct damages up to an amount not exceeding the price of the Product at issue. This limitation of liability does not apply in case of death or personal injury caused by NexGen Digital's negligence. NexGen Digital is not liable for and Customer is not entitled to any indirect, special, incidental or consequential damages (for example, loss of profits or revenue, loss of data, loss of use, rework, repair, manufacturing expense, costs of a product recall, injury to reputation or loss of customers). To the extent NexGen Digital cannot lawfully disclaim any implied or statutory warranties, Customer's statutory rights are not affected by this limitation of liability.
9. FORCES BEYOND NEXGEN DIGITAL'S CONTROL. NexGen Digital is not liable for failure to fulfill its obligations under this Agreement due to causes beyond its reasonable control (for example, acts of nature, acts or omissions of Customer, operational disruptions, manmade or natural disasters, epidemic medical crises, materials or Product shortages, strikes, criminal acts, delays in delivery or transportation, or inability to obtain labor, materials or Products through regular sources).
10. USE OF PRODUCTS. The customer shall comply with the manufacturer's Product specifications. Products are not authorized for use in life support systems, human implantation, nuclear facilities or any other application where Product failure could lead to loss of life or property damage. If Customer uses or sells the Products for use in such applications or fails to comply with the manufacturer's Product specifications, Customer acknowledges that such use, sale, or noncompliance is at Customer's sole risk. Customer shall indemnify, defend and hold NexGen Digital harmless from any claims based on: (i) NexGen Digital's compliance with Customer's designs, specifications, or instructions, (ii) modification of any Product by anyone other than NexGen Digital, or (iii) use of Products in combination with other products or in violation of this clause.
11. EXPORT/IMPORT. Certain Products and related technology sold by NexGen Digital are subject to export control regulations of the United States, the European Union, and/or other countries, excluding boycott laws ("Export Laws"). Customers shall comply with such Export Laws and obtain any license or permit required to transfer, export, reexport or import the Products and related technology. Customer shall not export or reexport the Products and related technology to any country or entity to which such export or reexport is prohibited, including any country or entity under sanction or embargoes administered by the United States, European Union or other countries. Customer shall not use the Products and related technology in relation to chemical, biological or nuclear weapons, rocket systems (including ballistic missile systems, space launch vehicles and sounding rockets) or unmanned air vehicles capable of delivering same, or in the development of any weapons of mass destruction.
12. ENVIRONMENTAL COMPLIANCE. Where applicable, Customer is responsible for all obligations and liabilities under the destination’s law’s and regulations.
13. GENERAL.
1.This Agreement shall be governed, construed, and enforced in accordance with the laws of the country where the NexGen Digital entity that accepted Customer's Order ("Governing Country") is located without reference to the conflict of laws principles. Governing Country is the United States of America, the laws and courts of the State of California will apply. The courts of the Governing Country shall have jurisdiction and venue over all controversies arising out of, or relating to, this Agreement.
2.Customer may not assign this Agreement without NexGen Digital's prior written consent. NexGen Digital's affiliates may perform NexGen Digital's obligations under this Agreement. This Agreement is binding on successors and assigns.
3.The unenforceability or invalidity of any of these terms or conditions will not affect the remainder of the terms or conditions.
4.Products, including software or other intellectual property, are subject to any applicable rights of third parties, such as patents, copyrights and user licenses, and Customer shall comply with such rights.
5.The parties agree that electronic signatures may be used and will be legally valid, effective, and enforceable.
6.Product information (for example, statements or advice (technical or otherwise) advertisement content, and information related to a Product's specifications, features, export/import control classifications, uses or conformance with legal or other requirements) is provided by NexGen Digital on an "AS IS" basis and does not form a part of the properties of the Product. NexGen Digital makes no representation as to the accuracy or completeness of the Product information and DISCLAIMS ALL REPRESENTATIONS, WARRANTIES, AND LIABILITIES UNDER ANY THEORY WITH RESPECT TO THE PRODUCT INFORMATION. NexGen Digital recommends Customers validate any Product Information before using or acting on such information. All Product information is subject to change without notice. NexGen Digital is not responsible for typographical or other errors or omissions in Product information.
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